End of assured shorthold tenancy and break clause - disagreement with letting agent

NeedToKnow2024

Hello,

My 12-month assured shorthold tenancy (AST) is coming to an end on 25 October 2024. The rent payment date is the 26th day of each month. There is a two-month break clause in the AST. I have not agreed to sign another AST and would like to leave the property on 25 October 2024.

My estate agent is arguing that if I decide to issue a notice now, the break-clause will take effect two months from the next payment date, so two months from 26 September 2024 i.e. 26 November 2024. This goes beyond my agreed fixed term date.  Surely I can’t be expected to pay for what I legally did not agree to? I.e. 25 October 2024 is the cutoff point.

I am of the view that my tenancy expires on 25 October 2024 (fixed term). The two month break-clause only gives effect if I would like to terminate my tenancy before the end of the fixed term i.e. by 25 October 2024. The two-month break clause is not applicable now as it would go beyond the end of the fixed term.

Would be good to know what others think. I’ve included the relevant clauses from my AST.

“The terms of this contract stipulate that the tenant/s must give a minimum of one month's notice in writing to end the tenancy and the landlord is required to give a minimum of two month’s notice. The tenancy cannot end before the fixed term of the tenancy unless a break clause has been agreed separately. If a break clause has been agreed then notice may be served in line with this as detailed in Schedule 1. Should the tenancy have become a Statutory Periodic Tenancy any notice served by the Tenant will take effect from the next rent due date following receipt of the notice and will expire the day prior to the next rent due date.”

“Rolling Break Clause (Schedule 1) - It is mutually agreed that a minimum of two months’ notice in writing may be served by the Tenant to terminate this agreement. This notice must be served in conjunction with a rental due date and will run for two months, taking effect from the next rent due date following receipt of the notice. The Landlord may also terminate this agreement by serving not less than the minimum period of notice as prescribed in law. At the time of this tenancy being granted this notice period is 6 months. This may change during the tenancy and it is agreed that the prevailing notice period at the time of serving notice may be used.

theartfullodger

Just leave before midnight 25/26th.  Take LOADS of photos (deposit) and return key to agent (office letterbox ) or back into property (take photos).

V unlikely landlord would sue for unpaid rent & would probably lose anyway,

Bookworm105

if 25 Oct 24 is the end date of fixed term and also is the end date of the tenancy itself then that is the end date of the tenancy !
by definition the fixed term cannot be beyond the end date of the tenancy, but perhaps the fixed term ends before the tenancy end date, your info is unclear, is your tenancy for 12months fixed term to 25 Oct ?  

statute law dictates when a contract (tenancy) ends - on its stated end date!

it is polite to inform the LL of your intention not to renew the contract
Some people may be impolite so to ensure the LL gets warning, it is often the case that the tenancy contract includes a specific clause asking for notification of intent at end of contract period. However, that cannot override the basis of the contract - it ends when it ends.

the first clause you quote makes reference to 1 month's notice without reference to a start date , so the implication is it is one calendar month from the date of the notice. Therefore, you are still well within that time limit to write to LL and tell them you will not be renewing on 25 Oct.

the second clause (break clause) is utterly irrelevant in the context of your question. Also it is actually very badly worded anyway. The LL can never end a tenancy within the first 6 months of its start date. The law then says after that period the LL must give a legal minimum of 2 months notice. The wording referring to 6 months is therefore very badly written since what it is actually trying to impose is the LL cannot end it during the first 6 months but after then the LL can exercise the break clause using 2 months notice. Bottom line however remains that the break clause relates to ending the tenancy early, you are not ending it early. You are simply not renewing it after its end date and graciously informing the LL of your intent not to renew. The break clause is irrelevant in relation to the contract end date,. 

if EA claims that is invalid notice then the letting agent is a disgrace for trying that on and you should make a formal complaint through their complaints system and be prepared to escalate it up to their external regulating body 

doodling

Hi,

My view is that of you leave before the end of the fixed term then:

1. The tenancy ends at the end of the fixed term and you cease bring liable for utilities, council tax, etc. at that point.

2. The position with respect to payment to the landlord (which I won't call rent as it isn't) for any period after that time is less clear.  Some will say that you have no liability whilst others will take the view that the landlord can impose payments in lieu of notice in the tenancy agreement.  Those payments would be to offset the loss the landlord has suffered as a result of your departure with incorrect notice.  Shelter acknowledges that the contract might do this.  I have no idea as to the correct legal position.

In your case, as you are not taking advantage of the break clause, you need only give one month's notice, according to the contract, which you have done, so the legal question in point (2) above does not arise.

Bookworm105

doodling said:

In your case, as you are not taking advantage of the break clause, you need only give one month's notice, according to the contract, which you have done, so the legal question in point (2) above does not arise.

agreed, one months notice is being given

point 2 would become a contractual dispute in court for failure to follow a contract clause relating to notifying intent at end of contract. OP has not given any evidence of a contract clause directly relating to that specific context, so the only other clause refers to giving 1 month's notice - which is what OP is doing and point 2 is, as you say, irrelevant

lookbook

theartfullodger said:

Just leave before midnight 25/26th.  Take LOADS of photos (deposit) and return key to agent (office letterbox ) or back into property (take photos).

V unlikely landlord would sue for unpaid rent & would probably lose anyway,

That's correct. No need to worry. 

NeedToKnow2024

Thanks all for your comments. 

I've spoken to a few people and interestingly one person interpreted it as follows "Based on the break clause above, for the tenancy to end on the 25th October, you would have needed to serve two months notice on the 25th August. As this has not passed, the agent is correct in stating that if you want to serve notice on the 25th September, this will need to expire 25th November. The reason for this is that you cannot serve one month's notice until your tenancy becomes a statutory periodic on the 26th October."

My AST says "Should the tenancy have become a Statutory Periodic Tenancy". I have no intention of it becoming such a tenancy. Also, note the word should rather than will. The two-month break clause argument appears irrelevant, as I'm not terminating my AST early. 

Any further thoughts?

BarelySentientAI

NeedToKnow2024 said:

Thanks all for your comments. 

I've spoken to a few people and interestingly one person interpreted it as follows "Based on the break clause above, for the tenancy to end on the 25th October, you would have needed to serve two months notice on the 25th August. As this has not passed, the agent is correct in stating that if you want to serve notice on the 25th September, this will need to expire 25th November. The reason for this is that you cannot serve one month's notice until your tenancy becomes a statutory periodic on the 26th October."

My AST says "Should the tenancy have become a Statutory Periodic Tenancy". I have no intention of it becoming such a tenancy. Also, note the word should rather than will. The two-month break clause argument appears irrelevant, as I'm not terminating my AST early. 

Any further thoughts?

Your "should" vs "will" comment is mistaken.  That's just explaining how one month's notice will be interpreted if you have already entered the SPT period.  It's not implying that there's an option for it to not become SPT so "will" would never fit.

You're also wrong, in my understanding, to interpret the end of the AST term as the end of the tenancy.  It isn't, it's only the end of the AST term.  Your tenancy continues beyond 25 October and does not 'expire'.

Apart from that, though, I agree with your interpretation.  2 months notice are required to end the tenancy before the end of the fixed term.  You want to end the tenancy at the end of the fixed term, not before, so 1 month notice is sufficient.

I don't agree with the new interpretation you have been given, as the one month notice period does not require you to be in the SPT.  You can serve one months notice in the AST according to the wording you quote - as long as it is to expire after the end of the term.

ripplyuk

I can’t see any reason why you’d need to serve any notice at all. It’s a fixed term tenancy. All you need to do is hand the keys back on the last day of that fixed term. Letting the landlord know in advance that you plan to leave, would be a courtesy not an obligation. 

daveyjp

Break clauses are provided to provide some flexibility and enable either party to break the contract before the end of the contractual term.

Once you get to 2 months less one day from the end of the tenancy the break clause is no longer an option for ending the tenancy early as its not possible.  You are therefore only bound by the terms of the contract until 25 October.

Bookworm105

your contract ends when it reaches the stated end date 25 Oct. That is contract law, which has applied for hundreds of years.
unless a new tenancy contract is signed, housing law would then take over were you to remain, so your tenancy would convert to a statutory periodic tenancy 

the break clause relates to ending it before that date, not on that date, nor after that date (The contract it relates to ended on 25th Oct so you cannot break something that no longer exists)
as others say, the break clause is irrelevant once you are within 2 months of the end date.

you have a contract clause requiring 1 months notification of your intention not to go SPT or seek a renewed contract.

the rest is just going round in circles. Tell your EA you will be making a formal complaint of incompetence and ignorance of contract law if they refuse to accept your 1 month notice. (and ignore your one person as they are clueless)